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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> F, Re [2009] EWHC B30 (Fam) (28 May 2009) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2009/B30.html Cite as: [2009] EWHC B30 (Fam) |
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B e f
o r e :
(On Appeal from
District Judge Jackson)
____________________
![]() ![]() ![]() ![]() ![]() | Appellant |
|
(ex parte) |
____________________
for
the Appellant
No other party appeared on the appeal
____________________
Crown Copyright ©
This judgment was handed down in private, but the judge hereby gives leave for
it to be
reported.
The judgment is being distributed on the strict understanding that in any report
no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the patient and members of her
family
must be strictly preserved.
Hazel Marshall QC 26th June 2009
HH Judge Marshall QC
This appeal
Background
The order appealed
Intervening matters
The appeal
The law
"being unable to make a decisionfor
himself in
relation
to the matter because of an impairment of, or a disturbance in, the
functioning
of the mind or brain" (s 2(1)).
Fortunately,
s 3 (1) of the Act provides
further
guidance on what is meant by being "unable to make a decision", since otherwise it would cause difficulty. Obviously it cannot mean literally "unable" to make a decision, since very
few
people
fall
into such an extreme category of
feeble
mindedness, and some people who have undoubted
mental
disorders affecting their thinking are perfectly well able to make decisions, albeit they may be bizarre ones. The "[inability] to make a decision
for
himself"
refers
to a defect or deficiency in normal powers of
reasoning,
ie a shortcoming in the ability to understand, or to
retain,
or to weigh up
relevant
information and/or to communicate a conclusion (s 3(1) (a)-(d)). Plainly the
first
three aspects go together, and can well be of a different character
from
the
fourth.
"48Interim
orders and directions
The court may, pending the determination of an application to it inrelation
to a person ("P"), make an order or give directions in
respect
of any matter if-
(a) there isreason
to believe that P lacks
capacity
in
relation
to the matter,
(b) the matter is one to which its powers under this Act extend, and
(c) it is in P's best interests to make the order or give the directions, without delay."
Decision
HH Judge Hazel Marshall QC